Thе Board of Managers of Trump Tower at City Center Condominium, by its President, Alan Neiditch, (the "Board" or "Plaintiff") filed the instant Action against Frank Palazzolo ("Mr. Palazzolo"); Mary Palazzolo ("Palazzolo"); Stephen Tobia ("Tobia"); Stephen Reitano ("Reitano"); Joseph Santangelo ("Santangelo"); Lorraine DiStefano ("DiStefano"); Gina Thomas *441("Thomas"); F & M Funding LLC ("F & M"); RLA Holdings, LLC ("RLA"); Premium Staffing LLC ("Premium Staffing"); Premium Parking, LLC ("Premium Parking"); Antoinette City Center, LLC ("ACC"); B.A.B. Group I, LLC ("B.A.B. I"); B.A.B. Group II, LLC ("B.A.B. II"); First Resource Funding LLC ("First Resource"); Ridgeview Holdings LLC ("Ridgeview LLC"); and Reda, Romano & Company, LLP ("Reda Romano") (collectively, "Defendants"), alleging one count of a violation of the Racketeer Influence and Corrupt Organizations Act ("RICO"),
Before the Court are three Motions. First, there are two Motions To Dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) -one on behalf of Tobia, Reitano, Santangelo, DiStefano, Thomas, RLA, Premium Staffing, Premium Parking, and First Resource (collectively "Tobia Defendants"), (see Dkt. No. 138), and the other on behalf of ACC, (see Dkt. No. 144). In addition, Plaintiff has filed a Motion To Dismiss the counterclaims asserted by Mr. Palazzolo, and to strike the affirmative defenses asserted by Mr. Palazzolo, Palazzolo, F & M, B.A.B. I, B.A.B. II, and Ridgeview LLC, (collectively "Palazzolo Defendants"). (See Dkt. No. 140.)
For the following reasons, the Tobia Defendants' Motion and ACC's Motion are both denied, and Plaintiff's Motion is granted in part and denied in part.
I. Background
A. Parties
This Action involves a large number of parties with various roles in the unlawful scheme alleged by Plaintiff. For clarity, the Court provides a summary of the Parties and their respective roles in the alleged scheme.
Plaintiff Board is an unincorporated association and the legal entity responsible for the control and operation of all common areas and public spaces of the Trump Tower at City Center Condominium at White Plains (the "Condominium"). (Am. Compl. ¶ 10.) The Board is comprised of seven members and has governed the Condominium since its opening in 2005. (Id. ¶ 2.)
Mr. Palazzolo served as Treasurer of the Condominium from 2007 until his removal by the Board in 2015. (Id. ¶ 11.) Mr. Palazzolo currently resides in the Condominium and remains a member of the Board as the nominated representative of the commercial spaces in the Condominium, including the commercial space owned by ACC. (Id. ) Mr. Palazzolo is a real estate investor, and owns a commercial building at 800 Central Park Avenue in Scarsdale, New York known as "Palazzolo Plaza," an address used by Defendants F & M, RLA, First Resource, Premium Staffing, Premium Parking, ACC, and Ridgeview LLC. (Id. ) Mr. Palazzolo is alleged to have either controlled or have been a member or managing member of a variety of businesses, including F & M, RLA, Premium Staffing, Premium Parking, ACC, Ridgeview LLC, B.A.B. I, and B.A.B. II. (Id. ) Mr. Palazzolo is married to Palazzolo, who herself controlled or was otherwise a member of F &
*442M and Ridgeview LLC. (Id. ¶ 12.) Defendant Thomas was an employee of Mr. Palazzolo and Palazzolo at F & M. (Id. ¶ 17.)
Mr. Palazzolo's long-time business associate Tobia is also alleged to have either controlled or have been a member or managing member of RLA, ACC, First Resource, and Ridgeview LLC. (Id. ¶ 13.) Tobia, a real estate investor and businessman, served as a member of the Board from October 2006 through his ouster in 2015, including a term as Vice President of the Board from June 2011 through December 2015. (Id. ) Together, Mr. Palazzolo and Tobia are alleged to have either owned or controlled ACC, a limited liability company that owns one commercial unit in the building alongside RLA, another limited liability company which itself owns two commercial units. (Id. ¶ 177.)
Reitano was also a member of the Board, serving from April 2006 through February 2013. (Id. ¶ 14.) Reitano is alleged to have controlled and/or been a member or managing member of Ridgeview LLC, along with Mr. Palazzolo and Tobia. (Id. )
Santangelo is the final member of the Ridgeview LLC, and also "controlled and/or was a member or managing member of" Premium Staffing and Premium Parking. (Id. ¶ 15.)
The Ridgeview LLC was created by Mr. Palazzolo, Tobia, Reitano, and Santangelo to manage an investment in a real estate project, Ridgeview, in Elmsford, New York. (Id. ¶ 64.) Ridgeview LLC received financing through F & M, which itself used funds earmarked for Tobia's company, RLA, on its own balance sheets. (Id. ¶¶ 63, 65.)
Mr. Palazzolo was also involved with Premium Staffing and Premium Parking, of which Santangelo and DiStefano were controlling partners and/or members or managing members. (Id. ¶¶ 11, 15-16.) Premium Staffing was created in December 2007 by Santangelo and DiStefano to manage the Condominium's Garage finances and ensure that the valet parking provider, Supreme Parking, Inc. ("Supreme"), was paid its monthly service fee from 2008 onward. (Id. ¶¶ 159-60.) Premium Parking, also created by Santangelo and DiStefano, came into the picture in 2014, where it took over for Supreme as the valet service provider at the Condominium. (Id. ¶ 169.)
B. Amended Complaint Factual Background
The following facts are drawn from Plaintiff's Amended Complaint and are taken as true for the purpose of resolving Defendants' respective Motions.
The Condominium has 215 units, all but three of which are residential. (Am. Compl. ¶ 30.) In 2005, almost immediately after opening, the Condominium encountered financial difficulties. (Id. ) Beginning in 2007, Mr. Palazzolo, a resident of the Condominium, became the Treasurer of the Condominium and negotiated payments from the Condominium's developer, Louis Cappelli ("Cappelli"), to boost the Condominium's reserve account, while also engineering the Condominium's purchase of the garage and recreation deck from Cappelli. (Id. ¶ 31.) For these actions, among others, Mr. Palazzolo was credited for righting the Condominium's financial ship. (Id. )
Mr. Palazzolo used these past successes to dominate all aspects of the Board. Outside of a pre-existing business relationship with fellow Board member Tobia, Mr. Palazzolo began to enter into real estate investments with Reitano, also a Board member, and loaned substantial sums of money to two other Board members, John Durante and Fred Mastroianni. (Id. ¶ 32.) During this early period of Mr. Palazzolo's *443tenure, he also entered into an agreement with the Trump Corporation, which was then acting as the Condominium's managing agent. (Id. ¶ 33.) In exchange for a $100,000 annual fee, Mr. Palazzolo agreed to manage the Condominium's Reserve Account (the "Reserve Account"). (Id. ) It is Mr. Palazzolo's management of the reserve account, in addition to his later involvement with Premium Staffing, Premium Parking, and ACC, that spurred this Action.
1. Mr. Palazzolo's Use of the Reserve Accounts
a. The Complex Web of Bank Accounts
Prior to Mr. Palazzolo's tenure as Treasurer of the Condominium, the Reserve Account was maintained together with the operating account in a single account managed by the Trump Corporation. (Id. ¶ 42.) Mr. Palazzolo quickly changed this practice, opening and closing seven different accounts in the Condominium's name-but under his direct control-at four different financial institutions between 2007 and 2015. (Id. ¶ 43.) These accounts are alleged to have been critical to facilitating the actions of the alleged "Palazzolo Enterprise," as it became increasingly difficult to identify how much money the Condominium held in its Reserve Account, while allowing Mr. Palazzolo to transfer funds to and from those accounts without detection. (Id. ¶¶ 43-44.) Indeed, during Mr. Palazzolo's time as Treasurer, the Board only expressly authorized five transfers from the Reserve Account, but there appear to be hundreds of withdrawals during that period. (Id. ¶ 45.)
First, Mr. Palazzolo opened an account at Key Bank in June 2008 ("Key 158 Account"). (Id. ¶ 46.) During the two years that account was open, Mr. Palazzolo directed the transfer of $550,000 to F & M from the Key 158 Account without Board authorization. (Id. ) Mr. Palazzolo then opened an account at Hudson Valley Bank in June 2010 ("Hudson 9741 Account"), which was funded by a $400,000 transfer from the Key 158 Account. (Id. ¶ 47.) When the Key 158 Account was closed in September 2010, the balance was transferred to an account set up by Mr. Palazzolo at JP Morgan Chase & Co. ("
b. Transfers to and from the Reserve Account
In April 2010, Mr. Palazzolo approached the Board with a business opportunity: the Condominium could loan $400,000 to RLA at an interest rate of six percent per annum. (Id. ¶ 56.) At the time, Mr. Palazzolo did not disclose to the Board that RLA was owned by fellow Board member Tobia, nor did he disclose that RLA's business address was at Palazzolo Plaza. (Id. ¶¶ 56-57.) Mr. Palazzolo also agreed to personally *444guaranty the repayment of the funds from RLA. (Id. ¶ 58.)
Ultimately, the Board approved the loan to RLA, with Mr. Palazzolo-and not Tobia-recusing himself from the vote. (Id. ¶¶ 59, 61.) However, unbeknownst to the Board and the Condominium, the money was actually being loaned from the Condominium's reserve funds to F & M, which was owned by Mr. Palazzolo and Palazzolo. (Id. ¶¶ 60-62.) On April 13, 2010, Mr. Palazzolo transferred $400,000 from the Key 158 Account to F & M, which F & M used to qualify for financing in connection with the Ridgeview development managed by Ridgeview LLC. (Id. ¶¶ 62-63.)
Soon after the transfer was consummated, the minutes of the Board meeting at which the loan to RLA was approved were made available to all unit owners in the Condominium. (Id. ¶ 66.) The owners were displeased with the use of Condominium reserve funds to an outside business, RLA, and demanded restitution of the funds. (Id. ¶ 67.) Mr. Palazzolo agreed to return the funds, which came via a transfer of $404,117 from F & M into the Key 158 Account. (Id. ¶ 68.)
In response to the undoing of the April 2010 RLA loan, Mr. Palazzolo decided to open three JP Morgan Chase & Co. accounts for the Condominium's reserve funds (the
Indeed, in December 2010, Mr. Palazzolo began this pattern of unauthorized transfers between the Condominium's JP Morgan Chase accounts and his personal JP Morgan Chase accounts. On December 1, 2010, Mr. Palazzolo transferred $400,000 from the
As for the two other Chase accounts, Mr. Palazzolo engaged in the very same pattern of transfers. Specifically, on July 19, August 5, and November 10, 2011, Mr. Palazzolo transferred a combined total of $79,481.69 from the Condominium's
Mr. Palazzolo also used the Chase accounts to divert funds due to the Condominium. For example, the Condominium was in receipt of a $650,122.70 check that accounted for the total amount to be refunded to each current or former unit owner in the Condominium based on a tax certiorari proceeding reducing the real property taxes owed by the unit owners. (Id. ¶ 86.) Mr. Palazzolo deposited the full amount of the tax certiorari proceeds into the
c. The Foreclosed Units
In April 2012, the Board was approached by Ridgewood Savings Bank's subsidiary, Ridge Forest Realty Corp. ("Ridgewood"), with an opportunity to purchase three units in the Condominium that were owned by Mr. Palazzolo, or by related persons or entities under his control, and had entered foreclosure, for $900,000. (Id. ¶ 102.) The Board considered the offer, but prepared to decline it, believing the purchase price would deplete its Reserve Account. (Id. ¶ 104.) Mr. Palazzolo, however, insisted that the Condominium purchase the units on his behalf, and offered to advance the down payment for purchase. (Id. ¶¶ 105-06.) The Board agreed, not knowing that it had less than $7,000 in its Reserve Account. (Id. ¶ 105.)
Thus, after negotiating a price reduction to $875,000, Mr. Palazzolo transferred $87,500 to the Condominium for a down payment, and the Condominium entered into a contract to purchase the units, then assigning its rights to Mr. Palazzolo. (Id. ¶ 106.) Mr. Palazzolo then compiled the balance due by using the Condominium's reserve funds, and with less than one month before closing, Mr. Palazzolo had amassed $725,000 by transferring funds from the Condominium's accounts to F & M's accounts. (Id. ¶ 107.) Mr. Palazzolo then transferred $800,000 back to the
2. Depletion of the Operating Account
By March 2014, the Condominium began to have liquidity issues and it became clear that the Condominium's Reserve Account had reached an unsustainably low amount. (Id. ¶ 109.) This led to a depletion of the Condominium's Operating Account, which impacted the Condominium's ability to pay for basic needs and services such as taxes, payroll, security, and routine maintenance. (Id. ¶ 110.) In response, Mr. Palazzolo authorized numerous transfers to cover up *446the fact that there were gross deficiencies in the Operating Account. (Id. ¶ 111.) For example, Mr. Palazzolo caused F & M to transfer $945,000 to the
3. The FloTV Deal
In 2010, FloTV, a subsidiary of Qualcomm Incorporated, negotiated with the Condominium to obtain an easement permitting FloTV to install an antenna on the rooftop of the building in exchange for a $4,200 monthly payment. (Id. ¶ 114.) FloTV, however, folded in 2014, and began to wind down operations. (Id. ¶ 115.) Mr. Palazzolo conducted the negotiations over what would be paid to the Condominium under the contract in light of this early termination, which resulted in a $143,714 payment to the Condominium. (Id. ¶¶ 115-16.) However, instead of depositing this check into the Condominium's Reserve Account, the check was deposited in the account of Premium Staffing, which maintained the "Garage Account." (Id. ¶ 118.) The proceeds of the FloTV deal were never turned over to the Condominium. (Id. )
4. Misrepresentations in Financial Statements and Bank Documents
According to Plaintiff, since 2010, Mr. Palazzolo has altered account documents generated by the bank with regard to the
The next year, in December 2011, Mr. Palazzolo undertook a similar course of action, providing false documentation to the Trump Corporation and O'Connor Davies LLP that reflected a total balance of $723,580.69 in the Condominium's Reserve Account. (Id. ¶ 121.) However, the true balance was only $15,152.40. (Id. ) And the year after that, December 2012, the Condominium's Reserve Account fell to $9,064, although Mr. Palazzolo reported a balance of $829,264 in the financial statements. (Id. ¶ 122.) In December 2013, Mr. Palazzolo again presented fabricated account documents to reflect a Reserve Account balance of $940,472, when the actual balance was $5,372. (Id. ¶ 123.)
5. One Final Transfer from the Reserve Account
On May 12, 2015, the Board drafted and adopted an Ethics Policy and Code of Conduct ("Ethics Policy") aimed at prohibiting self-dealing and any attempted preferential treatment for a Board member or their relatives in the use of Condominium property or business. (Id. ¶ 146.) Both Mr. Palazzolo and Tobia signed the Ethics Policy. (Id. )
Nonetheless, on June 29, 2015, Mr. Palazzolo effectuated the transfer of $931,250 in refinancing proceeds into the
On December 16, 2015, as a result of the Junе and July 2015 transactions, Mr. Palazzolo and Tobia were voted off the Board. (Id. ¶ 155.) However, Mr. Palazzolo was reappointed to the Board shortly thereafter by RLA and ACC, the owners of the Condominium's three commercial units, as their representative. (Id. )
6. The Garage Account
After Mr. Palazzolo and Tobia's ouster, the Board conducted an internal investigation of the Condominium's Reserve and Operating Accounts. (Id. ¶ 156.) During this investigation, it came to light that Palazzolo, together with DiStefano and Santangelo, used the Condominium's parking garage in much the same way as the Reserve Account. (Id. ¶ 158.)
The Condominium had initially purchased the parking garage from Cappelli in 2008, after which the Board hired Supreme to provide valet services from the Condominium for $32,000 per month. (Id. ¶ 159.) On December 27, 2007, prior to the Condominium's purchase of the garage, DiStefano opened a bank account at Commerce Bank in the name of "Premium Staffing, LLC TTCC Garage" (the "Garage Account"). (Id. ¶ 160.) DiStefano was the sole signatory of the Garage Account, and upon its creation and without notifying the Board, Mr. Palazzolo directed all garage income into the Garage Account. (Id. ) DiStefano and Santangelo would then issue the $32,000 monthly payment to Supreme. (Id. ) Premium Staffing would also pay itself a monthly fee from the Garage Account for this service. (Id. ) Indeed, beginning in 2008, Premium Staffing collected virtually all revenue generated by the operation of the garage, and was thus responsible for payment of Garage expenses, including payments related to financing the acquisition of the garage from Cappelli. (Id. ¶ 163.)
Premium Staffing initially charged the Condominium a $3,000 monthly fee for managing the garage. (Id. ¶ 166.) This fee was increased to $4,000 in 2008, $4,500 in 2009, and $5,000 in 2010. (Id. ) Beginning in October 2010, Premium Staffing began to pay its fees and Supreme's fees in a single transfer from the Garage Account, which resulted in Premium Staffing stealthily increasing its monthly fee to $7,800. (Id. ¶ 167.) In February 2011, Premium Staffing's fee increased to $10,800 per month, increasing again in September 2011 to $11,800 per month. (Id. ¶ 168.) All told, between 2011 and 2014, Premium Staffing paid itself roughly $873,475-without Board authorization-for the services of paying Supreme, paying utilities, and paying certain other monthly expenses. (Id. )
In 2014, Palazzo and DiStefano approached the Condominium with a "Parking Agreement," under which Premium Parking would provide valet services. (Id. ¶ 169.) Those services were actually performed by Supreme, but the Parking Agreement made it impossible to determine what amount Premium Parking and Supreme would each be paid. (Id. ) Ultimately, the amounts listed in the Parking *448Agreement were meaningless, as Premium Parking was paid significantly more than any amount described therein before the Parking Agreement was terminated in 2016. (Id. ) In fact, by 2014, the amount paid to Premium Parking and Premium Staffing grew to be roughly 93% of the gross income generated by the garage, as opposed to 60% in 2008. (Id. ¶ 170.) Due to these increased fees, the garage incurred $35,259 in losses in 2014, as opposed to a $225,000 profit in 2009. (Id. ) Moreover, when the garage was profitable, Premium Staffing never returned those profits to the garage. (Id. ¶ 171.) As a result, Premium Parking and Premium Staffing facilitated the transfer of roughly $680,964.82 of the Condominium's money from the Garage Account to various Defendants from 2008 to 2015. (Id. ¶ 172.) These transfers include: ten transfers to F & M for a total of $152,944.79; three transfers to RLA for a total of $15,000; four transfers to First Resource for a total of $23,335.27; three transfers to B.A.B. I and II for a total of $43,167; 29 transfers to DiStefano for a total of $167,790; 15 transfers to Thomas for a total of $72,400; one transfer to Premium Staffing's parking operations at the White Plains Ritz Carlton for $60,000; and dozens of other transfers to individuals and businesses unaffiliated with the garage. (Id. ) In addition, Premium Staffing is alleged to have charged the Condominium $187,600 for a handyman, to be paid from the Garage Account, only to pay the handyman $30,000 and keep the remainder. (Id. ¶¶ 174-75.) Since replacing Premium Staffing and Premium Parking in 2016, the Board has saved nearly $500,000. (Id. ¶ 173.)
7. Diversion of Commercial Unity Utility Payments
The Condominium employed a third-party service provider, Quadlogic Corp. ("Quadlogic") to determine the appropriate charges for electricity to be allocated to each residential and commercial unit and the common areas. (Id. ¶ 177.) One of the three commercial units was owned by ACC, with the other two owned by RLA and leased to a hair salon, Demirjian. (Id. ) Unbeknownst to the Board, but allegedly known by Palazzolo and Tobia, Quadlogic incorrectly believed that the commercial sub-meters did not need to be tracked because the amounts within those units reflected the electrical use by all common areas in the Condominium. Quadlogic thus never charged the commercial units for their electricity use but rather passed those costs onto the Condominium. (Id. ¶ 178.)
After Mr. Palazzolo was removed from the Board, this mistake came to light, and the Board sought to determine why the commercial tenants were not paying for utilities. (Id. ¶ 179.) Demirjian explained that Mr. Palazzolo had informed them that he was paying the electric bills on their behalf, and that the commercial tenants should simply pay him directly. (Id. ) Demirjian then showed the Board a copy of a check that Mr. Palazzolo had shown him, which purported to show that Mr. Palazzolo had paid the Condominium $27,694 in unpaid electrical charges. (Id. ) However, no such payments were ever made to the Condominium. (Id. ¶ 180.) ACC in fact refuses to return any funds owed to the Condominium and refuses to pay for any portion of the maintenance charges or utilities owed to the Condominium. (Id. ¶ 179.)
Instead, Mr. Palazzolo and Tobia contend that the Board agreed that commercial unit owners would not pay for electricity, a contention for which there is no evidence. (Id. ¶ 180.) Accordingly, Mr. Palazzolo and Tobia simply kept the more than $300,000 paid by the commercial tenants for themselves, as opposed to turning *449those payments over to the Condominium for the electrical bills. (Id. )
C. Palazzolo Counterclaims Factual Background
The following facts are drawn from the Palazzolo Defendants' Counterclaims and are taken as true for the purpose of resolving Plaintiff's Motion.
In the fall of 2004, Mr. Palazzolo entered into multiple contracts wherein he purchased 21 units in the Condominium for $21 million dollars from the Condominium's sponsor. (Countеrclaims ¶ 235 (Dkt. No. 122).) The purchase was conditioned upon the payoff of unpaid trade debt by the sponsor. (Id. ¶ 239.) Prior to closing, Cappelli, the principal of the Condominium's sponsor, offered Mr. Palazzolo a five percent discount if he closed immediately. (Id. ¶ 242.) Mr. Palazzolo rejected this offer, and instead asked that the sponsor contribute $800,000 to the Condominium to establish the Reserve Account. (Id. ¶ 244.)
According to Mr. Palazzolo, in reliance upon representations made by the Board to him, he gave up multiple personal business opportunities and forewent the monetary benefits that would have flowed to him based on those opportunities. (Id. ¶ 251.) In June or July 2009, the Board granted Mr. Palazzolo full control over the Reserve account and he used the Reserve account to enhance its value and further the business of the Condominium. (Id. ¶¶ 259-60.) It is not alleged that he was promised compensation for these actions, but rather that he could do what he wanted with the Reserve Account on behalf of the Condominium. (Id. ¶¶ 259-60.)
One such occasion was in 2006, prior to the date which Mr. Palazzolo says he was elected to the board, when Mr. Palazzolo convinced "his fellow members of the Board" to purchase energy from someone other than Con Edison. (Id. ¶ 316). Explaining that this kind of "speculation" was "somewhat obscure," Mr. Palazzolo alleges that he saved the Condominium approximately $1,154,000 during the ten-year period that he served as a member of the Board, without "obtaining" any fees or compensation for "arranging the Condominium to obtain its money in this matter." (Id. ¶¶ 318-19.)
Then, in July 2007, the Board sought to hire Lawrence Gomez ("Gomez") as a live-in resident manager. (Id. ¶¶ 265-66.) The only available unit owned by the Condominium was a one bedroom, but Gomez required a two bedroom for his family. (Id. ¶¶ 266.) To facilitate the hiring of Gomez, Mr. Palazzolo agreed to sell a unit he controlled valued at $750,000 to the Board for a discount of $40,000 for Gomez's use. (Id. ¶¶ 269-273.) Mr. Palazzolo also declined to collect no less than $165,000 in interest income for the benefit of the Board. (Id. ¶ 279.)
At an unspecified time in 2007, the Condominium's sponsor approached Mr. Palazzolo with another opportunity. This time, it was to purchase the garage and recreation center attached to the Condominium. (Id. ¶ 283.) While this would have resulted in substantial personal financial gain for Mr. Palazzolo, he instead advised the Board to purchase these assets from Cappelli. (Id. ¶¶ 283-86.) However, this purchase could not be consummated until the mortgage on the Condominium's retail spaces was satisfied. (Id. ¶ 287.) Given these circumstances, Mr. Palazzolo agreed to acquire the retail spaces through RLA, thus allowing the Condominium to close upon the purchase of the garage and recreation space in 2007. (Id. ¶¶ 289-90.)
Next, at an unspecified time, but during Mr. Palazzolo's tenure as Treasurer of the Board, Mr. Palazzolo implemented a hybrid staffing model where the Condominium *450saved at least $1,690,000 over a ten-year period by hiring non-union employees without "obtaining management fees, consulting fees, or other payments for staffing the organization he created." (Id. ¶¶ 305-13.)
Mr. Palazzolo then, at an unspecified time, was able to secure leases that generated income of $570,000 for the Condominium. (Id. ¶¶ 314-15.) However, Mr. Palazzolo does not allege that he personally forewent an opportunity in favor of providing this business to the Board.
At yet another unspecified point in time, Mr. Palazzolo alleges he purchased cheaper insurance policies for the Condominium, saving at least $880,000 over a ten-year period without "obtaining" management or consulting fees. (Id. ¶¶ 320-23.)
Additionally, at an unspecified time between 2006 and 2009, Mr. Palazzolo "directed" the opportunity to secure control of certain foreclosed apartments to the Board, rather than taking "the[ ] clear business opportunities for himself personally to purchase," said apartments. (Id. ¶¶ 324-27.) Mr. Palazzolo secured control of the units for the boаrd, and was able to generate $1,020,660.33 in rental income between 2009 and 2015 for the Condominium. (Id. ¶¶ 328-33.) Moreover, these units resulted in income of no less than $2,470,000, in combined rental and common charges, for the Condominium. (Id. ¶ 338.)
Finally, in October 2012, Mr. Palazzolo contends that via F & M, he was able to perform emergency flood repairs for at least 23 unit owners in the Condominium, presumably caused by Superstorm Sandy. (Id. ¶¶ 296-304.) Mr. Palazzolo "laid out significant money to effect those repairs," (id. ¶ 297), and "used his personal contact ... to effect the emergency repairs, for the benefit of the Board and unit owners, without payment or commissions he otherwise could have obtained as a private investor, [or] an insurance or construction consultant," (id. ¶ 298). Mr. Palazzolo used the excess funds from the insurance proceeds, due to these below market repair rates, "to effect capital improvements and amenity upgrades" in the Condominium. (Id. ¶ 303.) In total, the cost of the repairs and amenity improvements totaled "a fair market value well in excess of" the insurance proceeds, to Mr. Palazzolo's own detriment as he received no compensation for these actions. (Id. ¶ 304.)
D. Procedural Background
Plaintiff filed its Complaint on November 28, 2016. (Dkt. No. 1.) After receiving numerous extensions of time to file an answer, (see Dkt. Nos. 42, 44, 48, 53-54, 58, 63), Defendants Reitano and former Defendant Lori Overton ("Overton") filed pre-motion letters on January 31, 2017 seeking to dismiss the Complaint, (Dkt. Nos. 55-56). Defendant Reda Romano then filed a pre-motion letter on February 23, 2017, (Dkt. No. 65), and shortly thereafter, on February 27 and 28, 2017, the remaining Defendants filed their respective pre-motion letters, (Dkt. No. 67, 70). Plaintiff then filed its responsive letters on March 3, 2017, (Dkt. Nos. 72-77), and the Court held a pre-motion conference on May 2, 2017, (Dkt. (entry for May 2, 2017) ). The Court then set a briefing schedule, allowing Overton, ACC, and Reda Romano to file their respective Motions To Dismiss. (Mot. Scheduling Order (Dkt. No. 81).) However, on May 22, 2017, Plaintiff voluntarily dismissed the claims against Overton, (Dkt. No. 84), and then dismissed the claims relevant to Reda Romano's Motion on July 11, 2017, (Dkt. No. 89). Reda Romano then filed its Answer on August 8, 2017, аlong with crossclaims against all remaining Defendants. (Reda Romano Answer (Dkt. No. 97).) In the meantime, ACC filed its Motion on June 16, 2017, in accordance *451with the briefing schedule. (Dkt. Nos. 85-86.)
Following another extension of time to file an answer, (Dkt. No. 95), Defendants DiStefano, First Resource, RLA, Premium Parking, Premium Staffing, Santangelo, Thomas, Tobia, and Reitano filed their Answer and Counterclaim against Plaintiff on August 22, 2017, (Answer (Dkt. No. 100) ). Mr. Palazzolo and Palazzolo, B.A.B. Group I and II, F & M, and Ridgeview LLC filed their Answer and Counterclaim the same day. (Palazzolo Answer (Dkt. No. 102).) All Defendants filed their respective answers to Reda Romano's crossclaims on August 28, 2017. (Dkt. Nos. 104-105.)
Plaintiff filed an Answer to Premium Staffing's counterclaim, (Dkt. No. 108), and a pre-motion letter in response to the Palazzolo counterclaims, (Dkt. No. 107), to which the Palazzolo Defendants responded on September 15, 2017, (Dkt. No. 109). Next, the remaining Defendants, but for the Palazzolo Defendants, ACC, and Reda Romano, filed a pre-motion letter seeking to file a Motion for Judgment on the Pleadings, (Dkt. No. 111), which the Palazzolo Defendants joined in on September 29, 2017, (Dkt. No. 113). The Court held a conference on the putative Motions, allowing the Parties to amend their respective complaints and counterclaims by November 22, 2017. (Dkt. (entry for October 25, 2017).) Plaintiff filed an Amended Complaint on November 21, 2017, (Dkt. No. 120), and the Palazzolo Defendants filed and answer and counterclaims the next day, (Dkt. No. 122). Reda Romano filed an answer and crossclaim against all Defendants on December 12, 2017, (Dkt. No. 127), and the Defendants filed their respective answers to Reda Romano's crossclaim shortly thereafter, (Dkt. Nos. 131, 134, 136).
Defendants DiStefano, First Resource, Premium Parking, Premium Staffing, RLA, Reitano, Santangelo, Thomas, and Tobia Defendants, and ACC, filed pre-motion letters, this time seeking to file a Motion To Dismiss Plaintiff's Amended Complaint. (Dkt. Nos. 125, 129.) Plaintiff filed responsive letters on December 13 and 15, 2017, (Dkt. No. 130, 132-33), and filed its own pre-motion letter on December 6, 2017 seeking to dismiss the Palazzolo counterclaims, (Dkt. No. 124).
The Court held a conference on January 18, 2018, and adopted a briefing schedule for the present Motions. (Mot. Scheduling Order (Dkt. No. 137).) The Court terminated the prior ACC Motion, and had all Parties refile their respective Motions by February 16, 2018, with opposition due on March 16, 2018, and replies by March 30, 2018. (Id. )
Defendants DiStefano, First Resource, Premium Parking, Premium Staffing, RLA, Reitano, Santangelo, Thomas, and Tobia ("Tobia Defendants") filed their Motion on February 16, 2018. (Dkt. Nos. 138-39, 143.) ACC filed its Motion that same day. (Dkt. Nos. 144-146.) Plaintiff filed its Motion To Dismiss the Palazzolo counterclaims as well. (Dkt. Nos. 140-142.) Plaintiff filed their opposition to the ACC Motion, (Dkt. No. 147), and the Tobia Defendants' Motion, (Dkt. No. 148), on March 16, 2018. The Palazzolo Defendants filed their Opposition to Plaintiff's Motion that same day. (Dkt. No. 149.) ACC filed its Reply on March 29, 2018, (Dkt. No. 152), the Tobia Defendants filed their Reply on March 30, 2018, (Dkt. No. 154), and Plaintiff filed its Reply that same day, (Dkt. No. 153).
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint "does not need detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation *452to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly ,
In considering the respective Motions To Dismiss, the Court is required to "accept as true all of the factual allegations contained in the [C]omplaint." Erickson v. Pardus ,
B. Analysis
1. Plaintiff's Claims
As is relevant here, the Amended Complaint alleges that all Defendants, but for Reda Romano, as members of the "Palazzolo Enterprise," violated RICO,
a. Plaintiff's RICO Allegations under § 1962(c)
Plaintiff's substantive RICO cause of action against all moving Defendants is brought pursuant to
i. Enterprise Requirement
A RICO enterprise is defined as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity."
The Court must, as a threshold matter, address the Tobia Defendants' contention that Plaintiff's claim under § 1962(c) fails as to all Defendant members of the Palazzolo Enterprise "for lack of distinctness." (Tobia, et al. Defs.' Mem in Supp. of Mot. To Dismiss ("Tobia Defs.' Mem.") 4 (Dkt. No. 143).) Under the distinctness requirement, "a plaintiff must allege the existence of two distinct entities: (1) a 'person'; and (2) an 'enterprise' that is not simply the same 'person' referred to by a different name." Cruz ,
*454Palatkevich v. Choupak , Nos. 12-CV-1681, 12-CV-1682,
First, the Tobia Defendants claim that "because all of the members of the association-in-fact enterprise are also named as RICO Defendants," it cannot be distinct as defined by the Second Circuit. (Tobia Defs.' Mem. 4.) This, however, is a fundamental misunderstanding of the distinctness requirement. The case law is clear that the same entity cannot be both the person and the enterprise, see e.g., Cruz ,
Here, Plaintiff alleges that Defendants Mr. Palazzolo, Palazzolo, Tobia, Reitano, Santangelo, DiStefano, Thomas, F & M, RLA, Premium Staffing, Premium Parking, ACC, Ridgeview LLC, B.A.B. I, B.A.B. II, and First Resource comprise the "Palazzolo Enterprise." (Am. Compl. ¶ 5.) Accordingly, the Palazzolo Enterprise consists of seven individuals and nine businesses, each of whom is alleged to have committed predicate acts of racketeering in support of the Palazzolo Enterprise. (Id. ¶ 7.) Plaintiff further alleges that the members of the enterprise "conspired with each *455other to conduct, finance, and acquire ownership interests in the Enterprise and its business affairs through a pattern of racketeering," and that the members of the enterprise "knowingly and improperly used the Condominium's money to fund their own business activities." (Id. ¶ 40; see also id. ¶ 188 ("The defendants are a group of persons and entities associated together in fact as the Palazzolo Enterprise for the common purpose of carrying out an ongoing enterprise ... [n]amely, through years of individual acts of theft and fraud to cover that theft, these defendants stole money from the Condominium.").)
As pled, the Amended Complaint does not allege that the persons and entities that comprise the Palazzolo Enterprise all "operate within a unified corporate structure." Discon v. Nynex Corp. ,
ii. Predicate Racketeering Acts
Next, all Defendants argue that "[t]he Amended Complaint fails to allege that any Defendant, other than Mr. Palazzolo, personally committed any RICO predicate acts." (Tobia Defs.' Mem 7; see also ACC Mem. of Law in Supp. of Mot. To Dismiss ("ACC Mem.") 6 (Dkt. No. 146) ("The Complaint ... entirely fails to identify, much less particularize, which of these predicate acts was committed by ACC in furtherance of the ... purported RICO
*456enterprise.").) In effect, Defendants actually argue that Plaintiff has made collective allegations and has failed to identify what, if any, predicate acts were taken by the moving Defendants. (Tobia Defs.' Mem 7 ("[S]imply lumping ... Defendants into collective allegations, as Plaintiff does in the Amended Complaint, fails the particularity requirement of Rule 9(b) regarding RICO claims under § 1962(c)." (internal quotation marks omitted); ACC Mem. 6 ("[A] plaintiff must allege that each RICO defendant committed at least two predicate acts of racketeering activity within the last 10 years.").) )
Rule 9(b)'s heightened pleading standard requires plaintiffs "alleging fraud" to "state with particularity the circumstances constituting fraud ..." Fed. R. Civ. P. 9(b). In the context of a civil RICO claim, "all allegations of fraudulent predicate acts[ ] are subject to the heightened pleading requirement of [ Rule 9(b) ]." First Capital Asset Mgmt., Inc. v. Satinwood, Inc. ,
"The essential elements of a mail or wire fraud violation are (1) a scheme to defraud, (2) money or property as the object of the scheme, and (3) use of the mails or wires to further the scheme." United States v. Shellef ,
[t]he rationale for this approach is twofold: one, mailings made only in furtherance of a scheme are not technically allegations of fraud within the meaning of Rule 9(b) ; and two, the very purpose of applying Rule 9(b) to mailings in furtherance of the scheme is obviated where a plaintiff alleges the wider scheme with the requisite particularity.
Crabhouse of Douglaston Inc. ,
Here, Plaintiff alleges "a scheme that defrauded, and was intended to defraud, the Condominium" and that used the mails and wires in furtherance of that scheme. (Am. Compl. ¶¶ 192-93.) Defendants do not challenge the sufficiency of the allegations as to the scheme , but rather, they contend that the Amended Complaint fails to allege any acts that were committed by the moving Defendants in furtherance of that scheme. (Tobia Defs.' Mem. 7-8; ACC Mem. 6.) "Where multiple defendants are asked to respond to allegations of fraud, the complaint should inform each defendant of the nature of his alleged participation in the fraud." DiVittorio v. Equidyne Extractive Indus., Inc. ,
*458Odyssey Re (London) Ltd. v. Stirling Cooke Brown Holdings Ltd. ,
sufficiently particular to serve the three goals of Rule 9(b), which are (1) to provide a defendant with fair notice of the claims against him or her; (2) to protect a defendant from harm to reputation or goodwill by unfounded allegations of fraud; and (3) to reduce the number of strike suits.
Am. Fin. Int'l Grp.-Asia, L.L.C. v. Bennett , No. 05-CV-8988,
The Complaint's allegations of mail and wire fraud satisfy Rule 9(b) as to each Defendant. First, the Amended Complaint alleges that Santangelo and DiStefano controlled or were managing members of Premium Parking and Premium Staffing, (Am. Compl. ¶¶ 21), and that from 2007 through 2014, they, along with Mr. Palazzolo, began charging the Condominium a fee for managing the Garage Account without any authorization from the Board, (id. ¶¶ 164, 166). Indeed, Plaintiff alleges that Santangelo and DiStefano, "without authorization," paid themselves, via Premium Staffing, $873,475 between 2010 and 2014 "for simply handing money from the Condominium to ... its valet parking service provider, paying utilities, and a few other monthly expenses." (Id. ¶ 168.) Moreover, in 2014, DiStefano and Mr. Palazzolo allegedly presented the Condominium with a "Parking Agreement" on behalf of Premium Parking, and Premium Parking thereafter "paid itself far in excess of the amounts described in the Parking Agreement in 2015 and 2016." (Id. ¶ 169.) Plaintiff described the actiоns of DiStefano, Santangelo, Premium Parking, and Premium Staffing by alleging that "when the garage was making money ..., Premium Staffing was simply distributing those profits to members of the Palazzolo Enterprise. Mr. Palazzolo, DiStefano, and Santangelo were allegedly stealing from the Condominium in two ways: first, by diverting enormous unauthorized monthly fees to Premium Staffing and/or Premium Parking; and second, by distributing any profits the garage made to the coffers of the members of the Palazzolo Enterprise." (Id. ¶ 171.) In total, these individuals and entities allegedly transferred $680,964.82 of the Condominium's money to members of the Palazzolo Enterprise or others from 2008 to 2015. (Id. ¶ 172.) Indeed, the Premium Parking and Premium Staffing entities encompassed Thomas as well, who was a recipient of fifteen transfers from these entities, totaling $72,400. (Id. ) Moreover, Thomas notarized an agreement executed by DiStefano regarding the unauthorized payment of $187,600 to Gomez, "even though Thomas was not present when Mr. Gomez signed the agreement," (id. ¶ 174), which led to the payment of additional monies from the Condominium to the Garage Account, (id. ¶ 175).
Second, Reitano is alleged to have controlled or have been a managing member of Ridgeview LLC, (Am. Compl. ¶ 14), which participated in numerous "unauthorized, undisclosed, and illegal round trip transfers back and forth of the Condominium's funds to Ridgeview and other entities within the Palazzolo enterprise," (id. ¶ 93). Reitano also allegedly "caused notices to be circulated within the Condominium building that refund checks were available," and "set up shop in the Business Center and issued checks for refunds to *459those owners who appeared before them." (Id. ¶ 89.) However, because of the refund scheme allegedly created by Reitano and Palazzolo, tax certiorari refunds for 17 Unit Owners were "knowingly and intentionally" withheld. (Id. )
Third, Tobia is alleged to have controlled or have been a managing member of RLA, First Resource, Ridgeview LLC, and ACC, each of which is a central figure within the Palazzolo Enterprise. (Am. Compl ¶ 13.) As the principal of RLA, Tobia is alleged to have facilitated the fraudulent transfer of funds from the Condominium to F & M, as Tobia approved the transfer of $400,000 to RLA, with the understanding that the RLA loan was in fact to be transferred-without authorization-to Mr. Palazzolo and F & M. (See id. ¶¶ 56-62.) Indeed, Tobia voted to transfer the money to RLA based on representations he allegedly made, through Mr. Palazzolo, that he would repay the loan at six percent interest. (See id. ¶ 58.) Tobia, obviously self-interested in a transaction between the Board, of which he was a member, and RLA, of which he was a managing member, did not recuse himself and instead voted to facilitate the allegedly sham transfer. (Id. ¶ 59-60.) In sum, Tobia, with Mr. Palazzolo, "conspired to present the 2010 RLA Loan as a good investment that was secure ... [when,] [i]n fact, ... none of these things [was] true," and instead, "[Mr.] Palazzolo and Tobia were ... conspiring to disguise their transfer of the Condominium's reserve funds to F & M." (Id. ¶ 60.) This was allegedly done to inflate the value of F & M, (see id. ¶ 62), which would then be able to qualify for financing in Ridgeview, a real estate investment that Tobia, Mr. Palazzolo, Santangelo, and Reitano all managed, (see id. ¶ 64). All told, Ridgeview LLC, RLA, and First Resource, with Tobia's control, allegedly received, and facilitated the receipt of, numerous transfers totaling hundreds of thousands of dollars in allegedly stolen funds. (See, e.g., id. ¶¶ 135, 147, 172; id. Ex. A.) As to ACC in particular, Plaintiff does not allege that ACC itself undertook any acts. Rather, Plaintiff alleges that Mr. Palazzolo and Tobia "repeatedly claimed in communications with the Board that they either owned or controlled ACC." (Id. ¶ 177.) Palazzolo and Tobia, as the owners of ACC, knew that the unit owned by ACC was not being charged for electricity use, and instead that the cost was being borne by the Condominium and its unit owners. (See id. ¶ 178.) Indeed, Mr. Palazzolo allegedly concocted a scheme in which he told ACC's tenants that ACC was paying the Condominium for the electrical charges, and thus the bill could be paid directly to Mr. Palazzolo, as the owner of ACC, which in turn was the owner of the commercial space. (Id. ¶ 179.) These payments were notarized by Thomas. (Id. ) In fact, no payments were ever made by Mr. Palazzolo, Tobia, or ACC for electricity; instead, Mr. Palazzolo and Tobia, the owners of ACC, used in excess of $300,000 that ACC should have been paying the Condominium for the enrichment of the Palazzolo Enterprise. (Id. ¶ 180.)
It is true that courts in the Second Circuit "generally do not impose vicarious liability under RICO unless the corporate ... defendant is a central figure in the RICO scheme," and thus, "[p]laintiffs seeking to impose vicarious liability must, at a minimum, show that a corporate ... officer had knowledge of or was recklessly indifferent toward the unlawful activity." Fairfield Fin. Mortg. Grp., Inc. v. Luca ,
Regarding the wire and mail fraud claims, Plaintiff need only allege that each defendant "directly participated in the scheme and could reasonably foresee that the mails would be used in furtherance of the same." Rothstein v. GMAC Mortg., LLC , No. 12-CV-3412,
iii. Operation and Management
Moving Defendants argue that Plaintiff has not adequately alleged that they participated in the operation or management of the alleged RICO enterprise. (Tobia Defs.' Mem 8; ACC Mem. 8-9.) The Supreme Court first articulated the operation and management requirement in Reves v. Ernst & Young ,
As discussed above, Plaintiff has alleged that each defendant "played some part in directing the enterprise's affairs." First Capital Asset Mgmt., Inc. ,
b. RICO Conspiracy under § 1962(d)
Defendants next argue that the Complaint fails to plead a RICO conspiracy claim under
"To establish a RICO conspiracy, a plaintiff must plead that a defendant agreed to participate in the affairs of the enterprise through a pattern of racketeering activity." N.Y. Dist. Council of Carpenters Pension Fund v. Forde ,
Here, the Complaint satisfies this standard. While Plaintiff alleges, in somewhat conclusory fashion, that "[D]efendants entered into a series of agreements between and among each other to engage in a conspiracy," (Am. Compl. ¶ 220), Plaintiff also alleges facts that support an inference that such an agreement did exist, see *464U.S. Fire Ins. Co. v. United Limousine Serv., Inc. ,
Moreover, the Amended Complaint alleges that each Defendant benefitted financially from the scheme in the form of profits and income derived directly from their participation in the scheme. (See Am. Compl ¶ 17 ("Thomas conspired with [D]efendants to enrich herself and fund the business activities of the Palazzolo Enterprise."); id. ¶ 171 ("[W]hen the garage was making money ..., Premium Staffing was simply distributing those profits to members of the Palazzolo Enterprise. Palazzolo, DiStefano, and Santangelo were stealing from the Condominium in two ways: first, by diverting enormous unauthorized monthly fees to Premium Staffing and/or Premium Parking; and second, by distributing any profits the garage made to the coffers of the members of the Palazzolo Enterprise."); see also id. ¶¶ 13-16 (alleging that Tobia, Reitano, Santangelo, and DiStefano "conspired to fund his [or her] business activities and the business activities of the Palazzolo Enterprise with money stolen from the Condominium by Palazzolo"); id. ¶¶ 19-22, 26 (alleging that RLA, Premium Parking, Premium Staffing, ACC, and First Resource "received monies-and facilitated the receipt of monies by others-that were stolen from the Condominium by Palazzolo").) This supports an inference that Defendants knowingly participated in the conspiracy. See *465United States v. Heras ,
c. State Law Claims
i. Conversion, Unjust Enrichment, and Money Had and Received
ACC moves to dismiss Plaintiff's claims for conversion, unjust enrichment, money had and received, and aiding and abetting breach of fiduciary duty. (See ACC Mem. 10-11.) The crux of ACC's argument is that the claims for conversion, unjust enrichment, and money had and received are simply duplicative of a breach of contract claim. (See id. at 10-11.) However, as discussed above, Plaintiff does not assert a breach of contract claim against ACC-that claim is solely directed at Reda Romano and is wholly unrelated to the conduct of ACC. (See Am. Compl. ¶¶ 266-71.) Indeed, Plaintiff does not allege the existence of any contract between it and ACC, nor does it allege any provisions of a hypothetical contract that ACC hypothetically breached. There is no contract attached to the pleadings, nor is there any contract attached to any Party's motion papers of which the Court could, hypothetically, take judicial notice. See Schwartz v. Schwartz , No. 14-CV-3877,
As to the merits of these state law claims, which ACC fails to even address in its Motion, (see ACC Mem.), Plaintiff has pled that ACC, through its controlling owners Mr. Palazzolo and Tobia, knew that the unit owned by ACC was not being charged for electricity use, and instead, that cost was being unjustly borne by the Condominium and its unit owners. (See Am. Compl. ¶ 178.) Indeed, Plaintiff alleges that Mr. Palazzolo allegedly concocted a scheme in which he told ACC's tenants that ACC was paying the Condominium for the electrical charges, and thus the bill could be paid directly to Palazzolo, as the owner of ACC, which in turn was the owner of the commercial space. (Id. ¶ 179.) In fact, no payments were ever made by Mr. Palazzolo, Tobia, or ACC, for electricity. (Id. ¶¶ 178-80.) ACC continues to refuse to pay any portion of the charges for maintenance and utilities owed by it to the Condominium that ACC was, according to Plaintiff, obligated to pay initially. (Id. ¶ 179.) To state a claim for conversion, "a plaintiff must show that: (1) the property subject to conversion is a specific identifiable thing; (2) plaintiff had ownership, possession or control over the property before its conversion; and (3) defendant exercised an unauthorized dominion over the thing in question, to the alteration of its condition or to the exclusion of the plaintiff's rights." Moses v. Martin,
ii. Aiding and Abetting Breach of Fiduciary Duty
With regard to Plaintiff's aiding and abetting claim, ACC argues that Plaintiff "fails to allege how ACC (as opposed to Tobia) did anything to "aid and abet" Mr. Palazzolo's breach of fiduciary duty." (ACC Mem. 11.) ACC does not appear to disputе that Plaintiff has adequately pled that Mr. Palazzolo breached his fiduciary duty to Plaintiff, but rather that ACC did not aid and abet Mr. Palazzolo in his breach. "[T]o adequately plead a claim of aiding and abetting a breach of fiduciary duty under New York law, a plaintiff must allege: (1) breach of a fiduciary duty owed to the plaintiff; (2) defendant's knowing participation in the breach; and (3) damages."
*467Glidepath Holding B.V. v. Spherion Corp. ,
2. Palazzolo Counterclaims and Palazzolo Defendants' Affirmative Defenses
Plaintiff has moved to dismiss the unjust enrichment and promissory estoppel counterclaims asserted by Mr. Palazzolo on numerous grounds, including waiver, timeliness, and on the merits. (See Pl.'s Mem. in Supp. of Mot. To Dismiss Counterclaims ("Pl.'s Mem.") 8-21 (Dkt No. 142).) Plaintiff also seeks to strike the Palazzolo Defendants' affirmative defenses to Plaintiff's Amended Complaint. (See id. 21-22.)
a. Unjust Enrichment
As previously discussed, to state a claim for unjust enrichment, a party must demonstrate "1) [the counterclaim] defendant was enriched; 2) [the counterclaim] defendant's enrichment came at [the counterclaim] plaintiff's expense; and 3) circumstances were such that in equity and good conscience [the counterclaim defendant] should compensate [the counterclaim plaintiff]." Shamrock Power Sales, LLC ,
Here, the fundamental question "is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered." Tasini v. AOL, Inc. ,
Notably missing from Mr. Palazzolo's counterclaims is any mention of any expectation that he would be compensated for the transactions he made on behalf of the Board and for the benefit of the Board and the Condominium. "Courts applying New York law require a plaintiff to allege some expectation of compensation that was denied in order to demonstrate that equity requires restitutiоn." Tasini ,
b. Promissory Estoppel
"In New York, promissory estoppel has three elements: a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made[;] and an injury sustained by the party asserting the estoppel by reason of the reliance." Darby Trading Inc. v. Shell Int'l Trading & Shipping Co. ,
The Court finds it somewhat difficult to divine what "clear and unambiguous promise" is at issue in Mr. Palazzolo's Counterclaims. As pled, it is the decision by "the majority of the members of the Board" to grant Mr. Palazzolo "full and complete *470control over the Reserve Account and permission and authority to engage in transactions involving the Board, which in [Mr.] Palazzolo's experience, were in the best interests of the Board and the Condominium," (id. ¶ 259). This is a "vague and indefinite" promise that Mr. Palazzolo could essentially act in the Board's best interest, but did not set the parameters of this relationship in any way. See Ashland Inc. v. Morgan Stanley & Co. ,
Nonetheless, even assuming that Mr. Palazzolo has satisfied the first two elements, he has failed to plead an unconscionable injury. To satisfy the "unconscionable injury" requirement, Mr. Palazzolo "must demonstrate injuries beyond those that flow naturally from [Plaintiff's] non-performance or from [his] continuing performance of the unenforceable agreеment." Mobile Data Shred, Inc. v. United Bank of Switz., No. 99-CV-10315,
*471Palazzolo Loss."); id. ¶ 346 (defining the "Palazzolo Loss" as "[t]he value of the business opportunities [Mr.] Palazzolo did not pursue").) Such injuries related to Mr. Palazzolo's lost opportunities-and, as previously discussed, Mr. Palazzolo had no expectation to be paid for these services-would be insufficient grounds to state a promissory estoppel claim for a promise subject to the Statute of Frauds even if Mr. Palazzolo had any expectation of payment for his services. See Genna v. Sallie Mae, Inc. , No. 11-CV-7371,
c. Motion To Strike Affirmative Defenses 10-29
Finally, Plaintiff moves to strike 20 of the Palazzolo Defendants' affirmative defenses, all of which relate to the legal sufficiency of the RICO claims asserted by Plaintiff. (See Counterclaims ¶¶ 386-425.) "The standard that applies to a motion to strike is the 'mirror image' of the standard on a 12(b)(6) motion to dismiss for failure to state a claim." Cohen v. Elephant Wireless, Inc., No. 03-CV-4058,
Plaintiff argues that the Palazzolo Defendants' counterclaims "are not affirmative defenses-they are just argument ... [and] are relevant argument only in support of a motion to dismiss that these Defendants cannot bring." (Pl.'s Mem. 23.) In effect, the Palazzolo Defendants' affirmative defenses amount to a lengthy statement that Plaintiff has failed to state a RICO claim against the Palazzolo Defendants under § 1962(a) - (d). (See Counterclaims ¶¶ 386-425.) However, "it is well settled that the failure-to-state-a-claim defense is a perfectly appropriate affirmative defense to include in the answer." McCaffery v. McCaffery , No. 11-CV-703,
III. Conclusion
For the reasons stated herein, the Court denies the Tobia Defendants' Motion To Dismiss and ACC's Motion To Dismiss. The Court grants Plaintiffs Motion To Dismiss Mr. Palazzolo's unjust enrichment and promissory estoppel counterclaims with prejudice, but denies Plaintiffs Motion To Strike the affirmative defenses. The Clerk of Court is respectfully requested to terminate the pending Motions. (Dkt. Nos. 138, 140, 144 and 150.)
SO ORDERED.
Notes
To the extent that ACC claims Plaintiff's RICO claim is improper because it is actually a breach of contract claim, (ACC Mem. 7), that argument is without merit. Not once in the Amended Complaint does Plaintiff allege the existence of a contract between ACC and Plaintiff, nor does Plaintiff allege damages resulting from a contract. Instead, Plaintiff's allegations regarding ACC's conduct, based on the actions of Mr. Palazzolo and Tobia, are that it knew that the meters were improperly tracking the electrical usage of ACC's space, and that ACC, via its owners, knowingly withheld that information from Plaintiff and deprived the Condominium of money that Mr. Palazzolo is alleged to have known was due to Plaintiff. (Am. Compl. ¶ 178-79.) The concealment was allegedly "designed to prevent detection and prosecution of the organization's illegal activities, and [was] part of a consistent pattern, such that [it was] done in furtherance of the main criminal objectives of conspiracy," which may constitute a RICO predicate act. Hemmerdinger Corp. v. Ruocco ,
Because Plaintiff has adequately pled the two RICO predicates of wire fraud and mail fraud, the Court need not address the Plaintiff's allegations regarding the acts of bank fraud and violations of the NSPA. See Kriss ,
ACC cites to cаse law that states that the "operation and management test set forth in Reves is a very difficult test to satisfy." (ACC Mem. 8. (alteration omitted) (quoting Amsterdam Tobacco v. Philip Morris Inc. ,
Moreover, to the extent the Tobia Defendants attempt to dismiss the substantive claims asserted against Mr. Palazzolo, they base the entirety of their standing to challenge such claims on the fact that the § 1962(d) claims are brought against them based on underlying violations of § 1962(a), (b), and (c). (See Tobia Defs.' Reply in Supp. of Mot. To Dismiss ("Tobia Defs.' Reply") 6 (Dkt. No. 154).) However, there is no need for the Court to address the Tobia Defendants' arguments on the basis of Plaintiff's substantive RICO claims against Mr. Palazzolo under § 1962(a) and (b), because Plaintiff has adequately pled a substantive RICO violation under § 1962(c). Insofar as the substantive claims are attacked outside of the context of the conspiracy claim, Defendants do not have standing to move to dismiss the substantive claims not actually asserted against them. See Gordon v. Sonar Capital Mgmt. LLC ,
The Statute of Frauds clearly applies to the alleged oral promise made to Mr. Palazzolo. "[T]he Statute of Frauds renders unenforceable unwritten agreements that are impossible, by their own terms, to complete within one year of their creation." Andrews v. Sony/ATV Music Publ'g, LLC , No. 15-CV-7544,
Because the Court has already dismissed Mr. Palazzolo's unjust enrichment and promissory estoppel claims on the merits, it need not address Plaintiff's argument that it should dismiss these claims as time-barred.